Sarchione-Tookey v. TookeySarchione-Tookey v. Tookey
Susan L. Gwinn, Athens, Ohio, for appellant.1
Harsha, J.
{¶1} James Tookey appeals from the post-divorce judgment granting him limited supervised parenting time with his two minor sons. Tookey asserts that the trial court erred by failing to correctly apply the appropriate statutory parenting provisions because it did not provide him with more frequent and continuing contact with his sons, and did not establish a specific parenting time or visitation schedule for him.
{¶2} Tookey points to the testimony of his expert to support his contentions. Although Tookey’s expert testified that increased parenting time and communication between Tookey and his children would be in the best interest of the children, he also conceded that his primary job was to assess the threat level that Tookey might pose to the children. Likewise he did not witness the children’s “explosive behavior” and “act[ing] out violently” or other behavioral problems after visits with Tookey. In addition because the parties reside in different states and his ex-wife continues to suffer trauma
{¶3} Next Tookey contends that the trial court erred in ruling on his objections to the magistrate’s decision on parenting time by misapplying
{¶4} Tookey also claims that the trial court lacked in personam jurisdiction over his sister Emma, who the court named in the parenting order as the “go-between” to relay communications between the parties and assist in making the necessary arrangements, i.e., time and place for the exchange of the children. However, Tookey again forfeited all but plain error by not raising this specific objection to the magistrate’s decision. And he does not claim plain error on appeal. Moreover, he cannot establish error, much less plain error, because he has no standing to raise this claim on behalf of his sister in the absence of any evidencе that he incurred any specific prejudice or injury by virtue of his sister’s inclusion in the order. We find his claim to be meritless also.
{¶6} We overrule Tookey’s assignments of error and affirm the trial court’s parenting-time order.
I. FACTS
{¶7} James Tookey (“Tookey”) and Gina Sarchione-Tookey nka Sarchione (“Sarchione”) were married and had two sons, born in 2002 and in 2005, respectively. In March 2014, the Athens County Court of Common Pleas granted a divorce to Sarchione, designated her the residential parent and legal custodian of the children, and ordered Tookey to pay child support. Tookey was incarcerated at the time of the divorce for crimes relating to his domestic abuse of Sarchione and another of her sons.
{¶8} In June 2015, Tookey obtained his release from prison upon serving his four-year sentence. A couple months later Tookey filed a motion for parenting time with his two children. In the next month Sarchione moved with the children to Colorado, claiming she was afraid that Tookey would harm her and the children based on his extensive past abuse of them. She did not notify the court or Tookey of their relocation.
{¶9} In June 2016, the trial court ordered Sarchione to permit Tookey to have supervised visitation with his two sons, to be arranged by Dr. Gregory Janson. The first 60-minute visit occurred in a mediation room in the Athens County Courthouse and the second 90-minute visit occurred in a Mexican restaurant in Athens. The children’s guardian ad litem supervised a third visit, which occurred in a community center and park.
{¶10} A few months later the trial court held a hearing on Tookey’s motion for parenting time and some other matters. Dr. Janson, an associate professor of child and family studies at Ohio University and a professional clinical counselor, testified that his job in the case was to assess the threat level that Tookey might pose to his children. He opined that the children suffered from “ambiguous loss” when they did not have contact with him for several years while he was incarcerated. According to Dr. Janson the abandonment of a parent “is probably the worst insult that a child can suffer,” and can lead to bad behavior by the children like “acting out.”
{¶11} Based on his supervision of Tookey’s first two visits with his children and his interviews and evaluation of Tookey, Dr. Janson concluded that Tookey posed a
{¶12} Dr. Janson recommended that Tookey have contact with his children at least once or twice a week by telephone or Skype. He also recommended the standard parenting time for parents living far apart, e.g., four weeks during the summer. According to Dr. Janson, Tookey’s sister Emma would be an appropriate person to oversee Tookey’s future parenting time and she could intervene if she thought something inappropriate had occurred.
{¶13} Tookey lives in Athens, his mother lives in Pittsburgh, and his father and sister Emma live in California. His older son experiences intermittent epileptic seizures, but Tookey is willing to follow any physician orders and do whatever is necessary to provide adequate care for him. Tookey testified that after he was incarcerated, Sarchione broke off any communication between him and the children in 2012. When he was released from prison in 2016, he did not know where they were and had to hire a private investigator to locate them after they moved to Colorado. Since his release from prison, Tookey has abided by Sarchione’s wishes that he not contact her directly because of her fear of him. Tookey took responsibility for his domestic abuse of
{¶14} Sarchione testified that any visitation by Tookey with their children should be limited to therapeutic supervised visits, the children did not want extended visitation with him, extended visitation was not appropriate because they remained fearful of him, and they exhibited behavioral problems after visiting with him.
{¶15} Caitlan Acre, a licensed professional counselor who had been working with Sarchione and the children for a few months, testified that the children had “explosive behavior” that made them “often act out violently.” She had seen the children immediately after their visits with Tookey, and Sarchione rеported to her that their bad behavior was consistently more escalated following the visits. Because of the significant domestic violence that the children had witnessed, Acre recommended structured therapeutic supervised visits.
{¶16} Although she did not testify, the children’s guardian ad litem, Sonya Marshall, filed three reports in the case. Marshall initially recommended that Tookey be awarded no parenting time pending further investigation, but in her final report, she recommended that: (1) Tookey have supervised parenting time with the children during the summer and Christmas vacation; (2) the visits be six hours long; (3) Tookey be permitted twice-weekly contact with the boys via Skype or similar application; and (4) Tookey should familiarize himself with his oldest son’s medical needs.
{¶17} The magistrate issued a decision containing detailed findings of fact and conclusions of law. The magistrate recommended that Tookey receive the following supervised visitation with his two sons: (1) beginning in June 2017, two visits during the
{¶18} Tookey filed objections to the magistrate’s decision and аrgued that the decision violated
II. ASSIGNMENTS OF ERROR
{¶20} Tookey assigns the following errors for our review:
- THE TRIAL COURT MISAPPLIED
O.R.C. § 3109.051(D) IN ITS DE NOVO REVIEW OF THE RECORD. - THE TRIAL COURT MISAPPLIED
O.R.C. § 3109.051(A) ,(C) , AND(D) IN ITS ORDER OF VISITATION. - THE TRIAL COURT LACKED IN PERSONAM JURISDICTION OVER A PARTY NAMED IN ITS ORDER, RENDERING THE ORDER UNENFORCEABLE AND VOID.
- THE TRIAL COURT COMMITTED PLAIN ERROR IN RELYING UPON THE GUARDIAN AD LITEM REPORT AS SUBSTANTIVE EVIDENCE WITHOUT NOTICE TO THE APPELLANT, WHEN THE REPORT WAS NOT INTRODUCED INTO EVIDENCE AND WHEN THE GUARDIAN AS LITEM FAILED TO APPEAR AT THE HEARING AND WAS NOT AVAILABLE FOR EXAMINATION.
III. STANDARD OF REVIEW
{¶21} “Appellate courts generally review ‘the propriety of a trial court’s determination in a domestic relations case’ under the ‘abuse of discretion’ standard.” Clifford v. Skaggs, 4th Dist. Gallia No. 17CA6, 2017-Ohio-8597, ¶ 9, quoting Booth v. Booth, 44 Ohio St.3d 142, 144, 541 N.E.2d 1028 (1989) (abuse of discretion standard applies to child support, custody, visitation, spousal support, and division of marital property). Under this highly deferential standard, we must affirm the decision of the trial
{¶22} “This standard is warranted because trial courts must have wide latitude in considering the evidence and assessing the parties’ demeanor, attitude, and credibility.” Robinette v. Bryant, 4th Dist. Lawrence No. 14CA28, 2015-Ohio-119, ¶ 32, citing Davis v. Flickinger, 77 Ohio St.3d 415, 418-419, 674 N.E.2d 1159 (1997). The factfinder can accept or reject all, part, or none of the testimony of each witness. Jenkins v. Jenkins, 4th Dist. No. 14CA30, 2015-Ohio-5484, ¶ 23; see also McKay Mach. Co. v. Rodman, 11 Ohio St.2d 77, 82, 228 N.E.2d 304 (1967) (“The [trier of fact] can accept all, part, or none of the testimony of any witness whether it is expert opinion or eyewitness fact, whether it is merely evidential or tends to prove the ultimate fact”).
{¶23} The entry that Tookey contests is the trial court’s judgment overruling his objections to the magistrate’s decision. Wе review the trial court’s decision to adopt, reject, or modify a magistrate’s decision under an abuse of discretion standard. See Robinette at ¶ 32, citing In re S.H., 8th Dist. Cuyahoga No. 10091, 2014-Ohio-4476, ¶ 7.
{¶24} Under
IV. LAW AND ANALYSIS
A. Application of R.C. 3109.051(A), (C), and (D)
{¶25} For ease of analysis we initially consider Tookey’s second assignment of error. He asserts that the trial court erred by failing to correctly apply
{¶26} Under
{¶27} First Tookey argues that the trial court violated
{¶28} Under the statute the court is required to make specific findings that it is not in the child’s best interest to permit parenting time if it is to totally рreclude such contact. However, there is no mandate for a specific finding where contact is minimized but not precluded. The trial court’s decision overruling Tookey’s objections reflects its
{¶29} Next Tookey contends that the trial court’s parenting-time order violated
Regarding the alleged lack of specificity in the scheduling order, this case involves a supervised visitation order in which one party lives in Ohio, the proposed supervisor lives in California and the mother and children live in Colorado. It would be imprudent to issue a rigid order which failed to take into account these unique factors. The Magistrate’s order clearly establishes the permitted time, and accounts for the travel requirements of the several involved parties. Given the geographic distance between Movant in Ohio, his sister in California and the children in Colorado, it was entirely appropriate to allow for some minor degree of flexibility in arranging for the visits within the сontext of a specific order.
{¶30} The specific schedule requirement of
{¶31} The trial court properly applied these provisions of
B. Application of the Factors in R.C. 3109.051(D)
{¶32} In his first assignment of error Tookey asserts that the trial court misapplied
{¶33}
In determining whether to grant parenting time to a parent pursuant to this section or
section 3109.12 of the Revised Code or companionship or visitation rights to a grandparent, relative, or other person pursuant to this section orsection 3109.11 or3109.12 of the Revised Code , in establishing a specific parenting time or visitation schedule, and in determining other parenting time matters under this section orsection 3109.12 of the Revised Code or visitation matters under this section orsection 3109.11 or3109.12 of the Revised Code , the court shall consider all of the following factors:
The prior interaction and interrelationships of the child with the child‘s parents, siblings, and other persons related by consanguinity or affinity, and with the рerson who requested companionship or visitation if that person is not a parent, sibling, or relative of the child; - The geographical location of the residence of each parent and the distance between those residences, and if the person is not a parent, the geographical location of that person‘s residence and the distance between that person‘s residence and the child‘s residence;
- The child‘s and parents’ available time, including, but not limited to, each parent‘s employment schedule, the child‘s school schedule, and the child‘s and the parents’ holiday and vacation schedule;
- The age of the child;
- The child‘s adjustment to home, school, and community;
- If the court has interviewed thе child in chambers, pursuant to division (C) of this section, regarding the wishes and concerns of the child as to parenting time by the parent who is not the residential parent or companionship or visitation by the grandparent, relative, or other person who requested companionship or visitation, as to a specific parenting time or visitation schedule, or as to other parenting time or visitation matters, the wishes and concerns of the child, as expressed to the court;
- The health and safety of the child;
- The amount of time that will be available for the child to spend with siblings;
- The mental and physical health of all parties;
- Each parent‘s willingness to reschedule missed parenting time and to facilitate the other parent‘s parenting time rights, and with respect to a person who requested companionship or visitation, the willingness of that person to reschedule missed visitation;
- In relation to parenting time, whether either parent previously has been convicted of or pleaded guilty to any criminal offense involving any act that resulted in a child being an abused child or a neglected child; whether either parent, in a case in which a child has been adjudicated an abused child or a neglected child, previously has been determined to be the perpetrator of the abusive or neglectful act that is the basis of the adjudication; and whether there is reason to believe that either parent has
acted in а manner resulting in a child being an abused child or a neglected child;
(12) In relation to requested companionship or visitation by a person other than a parent, whether the person previously has been convicted of or pleaded guilty to any criminal offense involving any act that resulted in a child being an abused child or a neglected child; whether the person, in a case in which a child has been adjudicated an abused child or a neglected child, previously has been determined to be the perpetrator of the abusive or neglectful act that is the basis of the adjudication; whether either parent previously has been convicted of or pleaded guilty to a violation of
section 2919.25 of the Revised Code involving a victim who at the time of the commission of the offense was a member of the family or household that is the subject of the current proceeding; whether either parent previously has been convicted of an offense involving a victim who at the time of the commission of the offense was a member of the family or household that is the subject of the current proceeding and caused physical harm to the victim in the commission of the offense; and whether there is reason to believe that the person has acted in a manner resulting in a child being an abused child or a neglected child;(13) Whether the residential parent or one of thе parents subject to a shared parenting decree has continuously and willfully denied the other parent‘s right to parenting time in accordance with an order of the court;
(14) Whether either parent has established a residence or is planning to establish a residence outside this state;
(15) In relation to requested companionship or visitation by a person other than a parent, the wishes and concerns of the child‘s parents, as expressed by them to the court;
(16) Any other factor in the best interest of the child.
{¶34} Tookey argues that the trial court’s decision was erroneous because it failed “to articulate” any of the
{¶36} Moreover, even if his claim were properly before us, Tookey has not met his heavy burden of establishing plain error. “In appeals of civil cases, the plain error doctrine is not favored and may be applied only in the extremely rare case involving exceptional circumstances where error, to which no objection was made at the trial court, seriously affects the basic fairness, integrity, or public reputation of the judicial process, thereby challenging the legitimacy of the underlying judicial process itself.” Goldfuss v. Davidson, 79 Ohio St.3d 116, 679 N.E.2d 1099 (1997), syllabus. Because parental rights determinations are difficult to make and appellate courts accord wide latitude to the trial court‘s consideration of evidence in these cases, “[p]lain error is particularly difficult to establish.” Robinette v. Bryant, 4th Dist. Lawrence No. 12CA20, 2013-Ohio-2889, ¶ 28.
{¶38} Regarding
{¶39} Under
{¶40} Looking to
{¶41} As for
{¶42} Under
{¶43} In sum, the trial court properly applied the fаctors in
C. In Personam Jurisdiction over Tookey’s Sister
{¶44} In his third assignment of error Tookey contends that the trial court lacked in personam jurisdiction over his sister Emma, who the court designated as the go-between for the parties and supervisor of the parenting time at the recommendation of his expert, Dr. Janson,. Tookey claims this error renders the order unenforceable and void.
{¶46} We overrule Tookey’s third assignment of error.
D. Plain Error in Relying on Guardian Ad Litem Report
{¶47} In his fourth assignment of error Tookey argues that the trial court committed plain error by relying on the guardian ad litem’s final report as substantive evidence because the report was not introduced into evidence and the guardian ad litem did not appear at the hearing.
{¶48} Again, as Tookey acknowledges, he forfeited all but plain error by failing to raise this specific ground in his objections to the magistrate’s decision.
{¶49} To prevail on a claim of plain error appellant must establish that an error occurred, that the error was plain, and that but for the error, the оutcome of the trial clearly would have been otherwise. See generally State v. Mammone, 139 Ohio St.3d 467, 2014-Ohio-1942, 13 N.E.3d 1051, ¶ 69. In addition, “[a]n appellate court ‘must proceed with the utmost caution’ in applying the doctrine of plain error in a civil case.” Risner v. Ohio Dept. of Natural Resources, Ohio Div. of Wildlife, 144 Ohio St.3d 278, 2015–Ohio–3731, 42 N.E.2d 718, ¶ 27, quoting Goldfuss, 79 Ohio St.3d 116, 121, 679 N.E.2d 1099. “Plain error should be strictly limited ‘to the extremely rare case involving
{¶50} We have held that a trial court errs to the extent it admits and considers a guardian ad litem’s report as substantive evidence in a permanent сustody case. See, e.g., In re N.S., 4th Dist. Hocking No. 14CA23, 2015-Ohio-1510, ¶ 23, citing In re Hilyard, 4th Dist. Vinton Nos. 05CA630, 05CA631, 05CA632, 05CA634, 05CA636, 05CA637, 05CA637, 05CA638, and 05CA639, 2006-Ohio-1977, ¶ 58. Tookey primarily relies on Hilyard in support of his claim of plain error. But unlike either N.S. or Hilyard, this case is not a permanent custody case. In addition, neither N.S. nor Hilyard were decided based on plain error; timely objections to the reports occurred in those cases.
{¶51} The trial court’s reliance upon the GAL final report is at best, problematic. If the trial court wanted to consider the report of the guardian ad litem as evidence, “it must afford the parties ‘sufficient due process protection by making the [guardian ad litem] available for cross-examination.’ ” In re C.D.M., 4th Dist. Hocking No. 13CA1, 2013-Ohio-3792, ¶ 25, quoting Webb v. Lane, 4th Dist. Athens No. 99CA12, 2000 WL 290383, *3 (Mar. 15, 2000). “Put another way, ‘in order to consider a guardian ad litem‘s report without violating the parties’ due process rights, [the court] must afford all parties the opportunity to cross-examine the guardian ad litem regarding his or her report.’ ” Id. The court thus erred by considering the guardian ad litem’s report without affording the parties the opportunity to cross-examine the guardian ad litem concerning her report.
{¶53} Here, the trial court’s award of only limited, supervised visitation was supported by other evidence apart from the guardian ad litem’s final report. Sarchione testified that the children exhibited bad behavior following their visits with Tookey, and counselor Acre testified that she witnessed the children following their visitation and they exhibited explosive, violent behavior, which led to her recommendation of limited, supervised therapeutic visits between Tookey and the children.
{¶54} In light of evidence apart from the guardian ad litem’s report to support the court’s parenting-time order, we overrule Tookey’s fourth assignment of error.
V. CONCLUSION
{¶55} Tookey cannot establish reversible error, plain or otherwise. Thus we affirm the judgment of the trial court, which adopted the magistrate’s parenting-time order.
JUDGMENT AFFIRMED.
It is ordered that the JUDGMENT IS AFFIRMED and that Appellant shall pay the costs.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Athens County Court of Common Pleas to carry this judgment into execution.
Any stay previously granted by this Court is hereby terminated as of the date of this entry.
A certified copy of this entry shall constitute the mandate pursuant to
Hoover, P.J. & McFarland, J.: Concur in Judgment and Opinion.
For the Court
BY: ________________________________
William H. Harsha, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.